This week at the court
The justices will meet for their next conference on Friday, January 5. The calendar for the January sitting, which begins on January 8, is available on the Supreme Court’s website.
December 2017 Archive
Showing 1–50 of 74 items published in December 2017, most recent first.
SCOTUS for law students: Gorsuch’s start (Corrected)
There has been much commentary in recent months about the aggressive start Justice Neil Gorsuch has made since being sworn in on April 10, 2017. But how does the early stage of his tenure compare to those of his most recent predecessors, Justices Elena Kagan and Sonia Sotomayor?
SCOTUS Map: December 2017
It’s been a relatively quiet December here at SCOTUS Map. Justice Samuel Alito headlined a pair of events at the New-York Historical Society early in the month.
Wednesday round-up
Briefly: At the Cato Institute’s Cato at Liberty blog, Ilya Shapiro and others weigh in on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law that requires disclosures about the availability of publicly funded
Academic highlight: Telling stories in the Supreme Court
Linda Edwards is a professor at UNLV Boyd School of Law. Among the welter of amicus briefs in Whole Woman’s Health v. Hellerstedt was a brief filed by 112 women lawyers. In it, these women told the world, many for the first time, that they have had an abortion.
Tuesday round-up
Briefly: Constitution Daily reviews the major Supreme Court decisions of 2017. At Empirical SCOTUS, Adam Feldman analyzes the oral-argument engagement of the justices and advocates so far this term, remarking on the “potential strategic nature” of Justice Neil Gorsuch’s participation.
Symposium: Agency fees benefit the workplace — just ask the states
Xavier Becerra is the attorney general of California. Aimee Feinberg is a deputy solicitor general in the California Department of Justice. States like California have a great deal on the line in Janus v. American Federation of State, County, and Municipal Employees, Council 31: Unions that give voice to public employees may no longer be able to effectively do their job, depending on how the Supreme Court rules.
Friday round-up
Briefly: At The Economist’s Democracy in America blog, Steven Mazie notes that a study of “more than 3,000 hours of audio recordings of Supreme Court oral arguments between 1982 and 2014” suggests that “[t]he pitch of judges’ voices conveys more about their eventual votes than ‘legal, political and
Symposium: Evidence shows unions will survive without agency fees
Patrick Wright is the vice president for legal affairs at the Mackinac Center for Public Policy, which filed an amicus brief in support of the petitioner in Janus v. American Federation.
Exams aren’t over yet: SCOTUS quiz on “Table for 9”
We dine once a year with the President, and that is all. On other days we take our dinner together, and discuss at table the questions which are argued before us. We are great ascetics, and even deny ourselves wine, except in wet weather [when it is medicinally advisable].
Symposium: Not just a workers’ rights case
Emily Martin is general counsel and vice president for workplace justice at the National Women’s Law Center. She was part of an amicus brief in support of the unions in an earlier public-sector “agency fees” case, Friedrichs v. California Teachers Association.
Symposium: The free speech right of public employees not to pay union dues
Terence J. Pell is the president of the Center for Individual Rights, which helped represent the plaintiffs in Friedrichs v. California Teachers Association and Yohn v. CTA, and which recently filed an amicus brief in Janus v. AFSCME on behalf of the plaintiffs in Yohn.
Court sends DACA documents dispute back to lower courts
Twelve days ago, the Supreme Court temporarily blocked a lower-court order that would require the federal government to turn over additional documents connected to the decision to terminate the Deferred Action for Childhood Arrivals policy, known as DACA – a Obama-administration program that allowed undocumented immigrants who came to the United States as children to apply for protection from deportation.
Court releases February calendar
The Supreme Court today released the calendar for its February sitting, which starts on Tuesday, February 20 (because Monday, February 19, is a federal holiday) and ends on Wednesday, February 28.
Thursday round-up
Yesterday the justices, with no recorded dissents, temporarily blocked a lower-court order that required the federal government to turn over additional documents related to the administration’s decision to terminate the Deferred Action for Childhood Arrivals program, known as DACA.
Symposium: Hijacked riders, not free riders
Andrée Sophia Blumstein is the solicitor general of Tennessee, which joined an amicus brief with 19 other states in support of the challenger in Janus v. AFSCME. The petitioner’s name in Janus v. American Federation of State, County, and Municipal Employees, Council 31 may prove to be telling.
Wednesday round-up
Briefly: At Balkinization, Marty Lederman explains why, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding, “the ‘religious hostility’ theory of the case
Symposium: The importance of respecting precedent
Michael B. Kimberly is a partner at Mayer Brown LLP and co-director of the Yale Law School Supreme Court Clinic. He filed an amicus brief on behalf of constitutional law scholars in support of the unions in Friedrichs v. California Teachers Association, on which this essay is based.
Trump administration goes to justices over abortion for undocumented teen (FURTHER UPDATED)
UPDATE at 5:29 p.m. on December 19: This afternoon the Department of Justice asked the D.C. Circuit for a six-hour extension (to 9 p.m. tonight) in which to file its response to the ACLU’s brief.
Tuesday round-up
Last night the federal government asked the Supreme Court to put on hold a lower-court order requiring the release from immigration custody of a pregnant teenager so that she can obtain an abortion. Amy Howe has this blog‘s coverage, which first appeared at Howe on the Court.
Symposium: Overrule Abood to protect individual rights (at long last)
Deborah J. La Fetra is a senior attorney at the Pacific Legal Foundation. Public-employee unions are the only associations in the country legally permitted to take money — garnished wages — from nonmembers who do not support their goals.
Symposium: A ruling for plaintiffs would revive Lochner
Catherine Fisk is a professor of law at the U.C. Berkeley School of Law. Janus v. American Federation of State, County, and Municipal Employees, Council 31 presents a First Amendment challenge to all Illinois public-sector labor-relations statutes and all Illinois government labor contracts that require union-represented employees to pay a fee to the union for services that the union is required by law to provide.
Academic highlight: Jacobi & Rozema on predicting outcomes based on interruptions at oral argument
Savvy litigators can often guess the outcome of a Supreme Court case by observing the oral argument. But it might also be possible to make that kind of prediction scientifically, through empirical analysis of the justices’ interactions with the advocates and with each other.
Monday round-up
Briefly: In The Washington Post, Robert Barnes invites readers to “reflect on the fact that — once again — folks had to sleep on the sidewalk for days to see or hear the Supreme Court at work,” waiting for up to four days to gain access to the oral argument earlier this month in Masterpiece
For the third time, justices take on union-fee issue: In Plain English
Like many employees, Mark Janus was upset about deductions from his paycheck – specifically, the roughly $45 per month that goes to the local branch of the American Federation of State, County, and Municipal Employees, the union that represents him.
This week at the court
The Supreme Court is on recess. The justices will meet next for their January 5 conference. The calendar for the January sitting, which begins on January 8, is available on the Supreme Court’s website.
Ask the author: Justice Robert Jackson’s revealing thoughts and unpublished opinion in Brown v. Board of Education
The following is a series of questions posed by Ronald Collins on the occasion of the publication of David M. O’Brien’s “Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board” (University Press of Kansas, 2017, pp. 220).
Friday round-up
Briefly: At Bloomberg BNA, Jordan Rubin reports that “[a] group of foreign lawyers wants the U.S. Supreme Court to look to the English roots of the Sixth Amendment and the duties of counsel in other countries today when it considers the case of an American death row inmate” in McCoy v. Louisiana, a capital case scheduled for oral argument in January.
How the Grinch stole relists
John Elwood reviews Monday’s relists, after a fashion. Every Nerd Down in Nerd-ville Liked relists a lot … But the Grinch, Who lived just south of Nerd-ville, Did NOT! The Grinch hated relists! The whole relist thingy! Now, please don’t ask why. Who can tell with that ninny?
Petitions of the day
The petitions of the day are: United States v. Stitt 17-765 Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
Thursday round-up
At The Federalist, Margot Cleveland notes that although the justices denied cert this week in Evans v. Georgia Regional Hospital, which asks whether federal law prohibits employment discrimination based on sexual orientation, “[t]he Supreme Court … will need to eventually resolve the circuit split and it’s likely to have that opportunity soon.” Lisa Keen discusses the cert denial in Evans at Keen News Service.
Symposium: NIFLA v. Becerra — A Supreme housecleaning continues?
Mark L. Rienzi is a professor of law at The Catholic University of America, Columbus School of Law. The First Amendment’s protections for minority speakers are most needed — and most in jeopardy — when the speech relates to deeply important and deeply controversial issues.
Symposium: NIFLA v. Becerra — Compelling the truth in health-care delivery
Priscilla J. Smith is a clinical lecturer in law at Yale Law School. Don’t ask me why, but I’ve been moved of late to look for common ground with ideological opponents.
Symposium: “Hey California, stop telling us what to say at work!”
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. He filed an amicus brief supporting the cert petition in NIFLA v. Becerra, on which this essay is based, and will be doing so again at the merits stage.
Wednesday round-up
Briefly: At Sports Handle, Ryan Rodenberg recounts his experience attending oral argument last week in Christie v. National Collegiate Athletic Association, a constitutional challenge to the federal ban on sports betting.
Symposium: The First Amendment cannot justify lying to women
Julie Rikelman is the senior director of litigation at the Center for Reproductive Rights. Is there a First Amendment right to deceive the public about the services that a business provides, simply because those services involve reproductive health care?
Tuesday round-up
Yesterday the court issued additional orders from its December 8 conference; the justices did not add any cases to their docket, and they declined to review a case asking whether federal law prohibits employment discrimination on the basis of sexual orientation.
Symposium: If Justice Kennedy thought Colorado was “neither tolerant nor respectful” of a baker’s religious beliefs, how will he feel about California’s attack on pro-life pregnancy centers?
John J. Bursch is the founder of Bursch Law PLLC, a Michigan-based appellate boutique. He submitted an amicus brief in support of the crisis pregnancy centers’ cert petition in National Institute of Family and Life Advocates v. Becerra.
Symposium: Ensuring accurate information for patients does not violate the First Amendment
Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law. Merely requiring clinics to post a notice informing women of the availability of free or low-cost reproductive health care services does not violate the First Amendment.
Monday round-up
The Supreme Court added seven cases to its docket on Friday, including the second partisan-gerrymandering case of the term, Benisek v. Lamone, a challenge by Republican voters to a congressional district in Maryland.
OT2017 #9: “Peak SG”
The exciting December sitting may be over, but we’re still here to let you know what you missed. We catch you up on the oral argument in Masterpiece Cakeshop, everybody’s favorite cake-flavored battle between religious liberty and gay rights.
No new grants today
After adding seven new cases to their merits docket on Friday, the justices issued additional orders from last week’s conference. They did not add any more new cases to their docket, but they did deny review in a high-profile case in which they had been asked to decide whether a federal civil rights law barring employment discrimination “because of … sex” applies to discrimination based on sexual orientation.
Justices take on First Amendment challenge to state abortion disclosure laws: In Plain English
In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act.
This week at the court
The Supreme Court released additional orders from the December 8 conference on Monday. The justices will meet next for their January 5 conference. The calendar for the January sitting, which begins on January 8, is available on the Supreme Court’s website.
Court adds seven new cases to merits docket
The Supreme Court issued a preliminary set of orders from its conference today, adding seven new cases to its merits docket for the term. The new cases include a high-profile Maryland gerrymandering case, a dispute over federal sentencing laws and an effort to limit successive class actions.
Court blocks DACA discovery orders – at least for now
Tonight a divided Supreme Court put on hold a set of lower-court orders that would require the federal government to turn over additional documents related to the Trump administration’s decision to end the policy known as Deferred Action for Childhood Arrivals – a Obama-administration program that allowed undocumented immigrants who came to the United States as children to apply for protection from deportation.
Friday round-up
For The Washington Post, Robert Barnes reports that in “another dramatic reversal in a high-profile case before the high court,” the “Trump administration on Wednesday asked the Supreme Court to overrule a 40-year-old precedent that allows compelling public employees to pay some fees to unions that
Why justices attend the State of the Union: Two political scientists focus on positivity bias
Article II of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union.” House Speaker Paul Ryan, a Republican of Wisconsin, has invited President Donald Trump to deliver his first official “State of the Union” address on January 30, 2018.
This week’s oral argument audio now available on Oyez
Oyez has posted audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in: Christie v. National Collegiate Athletic Association Rubin v. Islamic Republic of Iran Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission Murphy v. Smith Marinello v. United States
SCOTUS for law students: Splitting the free speech community
Tuesday’s oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission showed that the justices are divided in their views on the conflict between the free-expression rights of a baker who refused to make a wedding cake for a same-sex couple and Colorado’s civil-rights law that protects against bias by businesses based on sexual orientation.
12